[2022] NSWCCA 17
Christian v R [2021] NSWCCA 300
Delaney v R (2013) 230 A Crim R 581
[2013] NSWCCA 150
DL v The Queen (2018) 265 CLR 215
[2018] HCA 32
Doyle v R (2022) 108 NSWLR 1
Source
Original judgment source is linked above.
Catchwords
[2016] HCA 25
Black v R (2022) 107 NSWLR 225[2022] NSWCCA 17
Christian v R [2021] NSWCCA 300
Delaney v R (2013) 230 A Crim R 581[2013] NSWCCA 150
DL v The Queen (2018) 265 CLR 215[2018] HCA 32
Doyle v R (2022) 108 NSWLR 1[2022] NSWCCA 81
FL v R [2020] NSWCCA 114
Flaherty v RR v Flaherty (2016) 92 NSWLR 290[2016] NSWCCA 188
Giles-Adams v The King (2023) 377 FLR 426[2023] NSWCCA 122
Hildebrand v R (2021) 387 ALR 271[2021] NSWCCA 9
Hurt v The King [2024] HCA 8
Ilic v R (2020) 103 NSWLR 430[2020] NSWCCA 300
JM v R (2014) 246 A Crim R 528[2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Kresovic v R [2018] NSWCCA 37
Lehn v R (2016) 93 NSWLR 205[2016] NSWCCA 255
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120
Judgment (5 paragraphs)
[1]
Introduction
Having concluded that the sentencing discretion miscarried in connection with the Commonwealth and State offences, it does not follow that the appeal must be allowed. It falls upon this Court to exercise the sentencing discretion and determine the sentence to impose. If, and only if, following that exercise, the Court is satisfied that a lesser sentence than that imposed by the sentencing judge should be imposed should the appeal be allowed: s 6(3) of the Criminal Appeal Act; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43] ('Kentwell').
Further, in relation to the re-exercise of the sentencing discretion, both the applicant and the Crown proceeded on the footing that this extended to exercising the sentencing discretion across all offences. That approach is consistent with what was said in Kentwell at [42], and as further explained in Lehn at [67]-[87].
On resentence, the case for the applicant was that a lesser sentence was warranted. The essential argument advanced during submissions by Mr Glissan KC, who appeared for the applicant, was that, noting the time that the applicant had spent in custody (approximately 13 months), and having regard to the objective seriousness of the offending and the applicant's subjective case, the Court should resentence the applicant to a total effective sentence of less than 3 years and order the balance of such sentence be served by way of intensive correction order (T5.38-6.49).
In relation to the subjective matters relied upon, that included the material contained in an affidavit from the applicant's solicitor, Zaki Hajjar sworn 4 April 2024. The Court received that evidence on the "usual basis" - that is, to show events that have occurred since the time of sentencing, and not to enable a new and different case to be run in the event that this Court resentenced the applicant: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]; Ragg v R [2022] NSWCCA 150 at [56].
The Crown's ultimate submission was that no lesser sentence was warranted, with the consequence that the appeal should be dismissed.
[2]
The further evidence read on the appeal
Before exercising the sentencing discretion, it is appropriate to address the further evidence read on the appeal.
The Crown was critical of the form of the evidence - in particular, its generality. There is considerable force to this submission. The evidence, which sought to demonstrate that the applicant has made a claim arising out of him being "the victim of sexual abuse" whilst a student at a secondary school and, separately, whilst in custody at Cobham Juvenile Justice Centre, said little else. There are no details at all as to the nature of the abuse alleged nor, by way of further example, was there any medical evidence of any kind directed to explaining what effects the alleged abuse has had upon the applicant. The Crown essentially submitted that the evidence lacks any degree of particularity that precludes it from being meaningfully used. I agree. In those circumstances, I am not prepared to act on that evidence, such as it is.
Given the view I have reached, it is unnecessary to address whether this evidence represents a new and different case to the one advanced before the sentencing judge.
[3]
Discussion and consideration: resentencing the applicant
At the outset, it is important to note that the applicant did not challenge any of the findings made by the sentencing judge. Those findings are, it should be emphasised, somewhat limited.
Further, apart from correcting the error in connection with the appropriate discount for the utilitarian value of the pleas of guilty to the State offences, and a finding in connection with the objective seriousness of the offending for count 3, neither the applicant nor the Crown sought any further findings. Accordingly, exceptional cases aside, the sentencing discretion proceeds on the basis of the findings made by the sentencing judge, together with "any relevant evidence of the offender's post‑sentence conduct": DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]. In this case, however, there is no evidence relating to "post-sentence conduct", with the consequence that the resentencing of the applicant proceeds entirely upon the findings of the sentencing judge.
As to the objective seriousness of the offending across all counts (except in relation to count 3, where the sentencing judge made no finding; a matter separately addressed, below), the findings were:
1. in relation to count 1, the objective seriousness fell "somewhere in the intersection between the top of the middle range of objective seriousness and the bottom of the high range of objective seriousness" (J12);
2. in relation to count 2, the objective seriousness fell at "about the midpoint of the mid-range of objective seriousness" (J12); and
3. in relation to counts 4-9 (the State offences), there was "a relatively high level of culpability" (J12), but nevertheless the course of conduct fell "towards the lower end of the spectrum for this class of offence given the amounts of money and the criminality that can be disclosed in them" (J13).
It is necessary to address, and make a finding about, the objective seriousness of the offending for count 3. Consistent with the approach adopted before the sentencing judge, the applicant's submissions in this Court - both written and oral - did not identify the specific finding sought as to the objective seriousness of this offending.
The Crown, on the other hand, submitted that the Court should find, in line with what was argued before the sentencing judge, that the offending was in the mid-range of objective seriousness.
In my view, the offending for count 3 should be assessed as in the mid-range of objective seriousness. That finding should be made because I regard the offending conduct as relatively serious. The police provided the applicant with the s 3LA order, and ordered him to provide access to the blue iPhone 12 according to the terms of that order, but the applicant did not comply. Further, "[a]fter repeated requests" were made by police for the applicant to comply with the order, the applicant maintained his refusal to do so (J12; agreed facts at [56]-[58]). It is also relevant to note, in connection with the gravity of the offending, that whilst ultimately it appears that access was gained to the conversations on the iPhone (in particular, on the application Telegram), the refusal of the applicant to comply with the order obstructed and frustrated to a degree law enforcement officers accessing the information on the device that was used in at least some of the offending.
In relation to the applicant's subjective case, the sentencing judge made a confined number of factual findings. Those findings include: that the applicant was born in November 1993 (J2); that the applicant has expressed remorse and "become remorseful in relation to these matters" (J13, J14); that the applicant has "a limited criminal history" which nonetheless "denies him leniency" (J13); and that the applicant was subjected to "relatively onerous bail conditions" (J14). In relation to this last finding, given the bail conditions involved the applicant reporting to police three times a week, the characterisation that such a condition was (or the conditions imposed more generally were) onerous is, in my view, a generous one favourable to the applicant.
The sentencing judge did not make any express finding about the applicant's prospects of rehabilitation, however observed that the applicant "has managed over an extended and sometimes delayed period on relatively onerous bail conditions…to set up some things in his life which include some financial commitments and has a fledgling business" (J14). As I have earlier noted, the applicant did not invite this Court, however, to make any particular, or further, finding in connection with the applicant's rehabilitative prospects.
The sentencing judge also found that the applicant pleaded guilty to the offending, and was therefore entitled to a discount for the utilitarian value of those pleas (J13, J15).
In connection with the appropriate discount for the utilitarian value of the pleas of guilty, the Crown did not contend, in relation to the Commonwealth offences, for there to be a different finding than the one made by the sentencing judge - being 15%, notwithstanding that it proceeded upon an erroneous basis that the position was agreed, when it was not. The applicant, as I have noted, did not seek a different finding in relation to the discount the sentencing judge gave to the Commonwealth offences. In relation to the discount for the State offences, the applicant did not contest that the sentencing judge had made the errors, in the way that I have earlier noted (see [60]-[67], above). The sentencing discount for the guilty pleas to the State offences is 10%: ss 25D(1) and (2) of the CSP Act.
In exercising the sentencing discretion, I am required to be mindful of the legislative guidepost - being the maximum sentence for each offence (as earlier noted, there is no standard non-parole period or minimum penalty applicable for any of the offences) - and to identify all factors relevant to the sentencing task, consider their significance and then assess the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] ('Markarian'); Muldrock at [26]-[27].
When determining the sentence to be passed for the Commonwealth offences, the Court must impose a sentence "that is of a severity appropriate in all the circumstances of the offence": s 16A(1) of the Crimes Act 1914 (Cth).
As I have earlier noted, in relation to the Commonwealth offences, the maximum penalties were: for count 1 (contravention of s 480.4 of the Criminal Code) - 5 years imprisonment; for count 2 (contravention of s 474.17(1) of the Criminal Code) - 3 years imprisonment; and for count 3 (contravention of s 3LA(6) of the Crimes Act 1914 (Cth)) - 10 years imprisonment and/or 600 penalty units. There are no standard non-parole periods or mandatory minimum penalties.
In connection with these offences, the serious nature with which the offending must be adjudged is reflected in the maximum penalties, albeit that the maximum penalty is reserved for the worst category of cases or worst possible case constituting the offence: Markarian at [31]; Hurt v The King [2024] HCA 8 at [27].
Section 16A(2) provides a list of matters that must be taken into account if "relevant and known to the court". In this respect, the sentencing exercise has involved a consideration of each of the matters the subject of the findings made by the sentencing judge, including the 15% discount for the early guilty pleas (s 16A(2)(g)), as well as the sentencing judge's findings and, in relation to count 3, my finding as to the objective seriousness of the offending (s 16A(2)(a)). I have also, favourable to the applicant, accepted that he has some prospect of rehabilitation (s 16A(2)(n)).
Given the above matters, the nature of the offending and its seriousness, the need to impose a sentence that is of "a severity appropriate in all the circumstances" (s 16A(1) of the Crimes Act 1914 (Cth)), as well as general and personal deterrence and denunciation, I am satisfied that no other sentence, other than imprisonment, is appropriate in all the circumstances of the case: s 17A(1). It should be noted that the sentencing judge recorded a concession that the "threshold" referred to in that section was accepted by the applicant to "have been crossed" (J2). Further, I am unable to find that any lesser indicative sentences are warranted in law in relation to these offences. Nor do I consider that any lesser aggregate sentence is warranted in law.
In relation to counts 4-9 (contravention of s 192E of the Crimes Act 1900 (NSW)), the maximum penalty is 10 years imprisonment, reflecting the serious nature with which conduct of that kind is viewed. There is no standard non-parole period or mandatory minimum penalty.
As with the Commonwealth offences, so too here, the applicant conceded, and I accept and find, that the "threshold" referred to in s 5(1) of the CSP Act "ha[d] been crossed" (J2).
In relation to these offences, the sentencing judge made specific findings about the objective seriousness of the offending, which I have considered: see [87(3)], above.
The offending with which these counts are directed involved some sophistication and the extent of the fraud deserves stern punishment. Further, given the offending involved identity theft and exploitation of the electronic banking system, "personal and general deterrence are of particular significance": Stevens v R (2009) 262 ALR 91; [2009] NSWCCA 260 at [79].
Further, proceeding on the findings as to the subjective matters, earlier set out, allowing for a discount for the early guilty pleas of 10% in line with s 25D(2)(b) of the CSP Act and having regard to the purposes of sentencing (s 3A of the CSP Act), in my view, no lesser indicative sentences are, or aggregate sentence is, warranted in law for the State offences.
It follows, given the conclusion that I have reached that no lesser sentence is warranted in law in connection with the offences, that an intensive correction order cannot be made because the aggregate sentence exceeds 3 years: s 68(2) of the CSP Act. Some amendment to the commencement date of the sentence is, however, necessary.
For those reasons, I would grant the applicant leave to appeal and allow the appeal, however, given the conclusion I have reached following a re-exercise of the sentencing discretion, the sentence to be imposed will vary from that imposed in the District Court only to the extent necessary to make proper allowance for pre-sentence custody.
The adjustment for the time the applicant was held in custody prior to sentence should be made having regard to ss 47(2) and (3) of the CSP Act. That last section obliges the sentencing court to consider whether to backdate the commencement date of a sentence to "take into account any time for which the offender has been held in custody in relation to the offence". That backdating, as the Crown accepted, should occur. To give effect to this, the sentence in connection with the State offences should commence on 24 February 2024, with the applicant being eligible for parole on 23 February 2025. The expiry of the term is 23 May 2026.
[4]
Orders
For the above reasons, I propose the following orders:
1. Grant leave to appeal;
2. Allow the appeal;
3. The aggregate sentences passed in the District Court are confirmed but, in relation to the sentence for the State offences (being counts 4-9 inclusive), is directed to commence on 24 February 2024. The non-parole period will expire on 23 February 2025; the sentence expires on 23 May 2026.
HUGGETT J: I have had the benefit of reading in draft the judgment of Chen J and the additional observations of Wilson J. I agree with the reasons of Chen J and the orders his Honour proposes.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 08 May 2024
Given the sentencing judgment does not have a medium neutral citation and is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc. As the applicant's grounds of appeal are directed to how the sentencing judge dealt with count 3, that will be the focus of what follows.
In relation to count 3, the sentencing judge set out the agreed facts (as contained in [55]-[58] of that document) relating to that count (J11-12):
The facts in relation to the third Commonwealth matter at count 3 that at about 3.25pm on Thursday 11 February 2021, the AFP commenced a s 3E Crimes Act search personal search warrant on the offender who was in the vicinity of King Street and Market Streets in Rockdale. A blue iPhone 12 was located on the offender and was seized. At about 3.37pm the offender was provided with a s 3LA Commonwealth Crimes Act order. That order required the offender to provide information and assistance as reasonable and necessary to allow the AFP to access data held in or accessible from a computer or a storage device as identified in the order. Accordingly, at 4.22pm on Thursday 11 February 2021, police ordered the offender to provide access to the blue iPhone 12 according to that order and after repeated requests the offender refused to comply with.
Thereafter, the sentencing judge commenced his assessment of the objective seriousness of the Commonwealth and State offences (J12):
It falls to a sentencing tribunal to assess the objective seriousness of both state and Commonwealth offences. Effectively, the Commonwealth made careful written submissions about this issue and Mr Stanton did not cavil with the way in which counsel then appearing for the Commonwealth had characterised the objective seriousness of each of the offences.
Having noted the above, the sentencing judge then proceeded to make findings as to the objective seriousness of the offending. In relation to count 1, the finding was that the objective seriousness fell "somewhere in the intersection between the top of the middle range of objective seriousness and the bottom of the high range of objective seriousness" (J12); in relation to count 2, the finding was that the matter fell "about the midpoint of the mid-range of objective seriousness" (J12); and in relation to the State offences (counts 4-9), although finding that there was "a relatively high level of culpability in relation to those offences" (J12), the sentencing judge nevertheless found that the course of conduct fell "towards the lower end of the spectrum for this class of offence given the amounts of money and the criminality that can be disclosed in them" (J13).
The sentencing judge did not, however, make a finding about the objective seriousness of the offending the subject of count 3.
The sentencing judge then dealt with a range of subjective matters (J13-15) and also noted that the "only significant division between the parties" was whether the applicant should be "released to an Intensive Corrections Order (sic)" (J15). As to this matter, the sentencing judge remarked that "having thought carefully about the objective seriousness of the offending, I have arrived at a structure of sentences that mean that an Intensive Corrections Order (sic) was not in fact available" (J15). Earlier, the sentencing judge recorded that the Crown accepted that the plea of guilty had "significant utilitarian value and the parties shared in a submission that [a] 15% utilitarian discount was warranted" (J13).
The sentencing judge "applied the 15% discount to each of the indicative sentences" (J15).
The indicative sentences for the Commonwealth matters were (J15):
1. Count 1: 6 months.
2. Count 2: 9 months.
3. Count 3: 12 months.
The indicative sentences for the State offences were (J16):
1. Counts 4-7 inclusive: 9 months.
2. Counts 8-9 inclusive: 12 months.
The sentencing judge "found special circumstances both on the basis of totality and the need for [the applicant] to have a longer period released to parole" (J16).
As a single aggregate sentence cannot include both Commonwealth and State offences, the sentencing judge sentenced the applicant to two aggregate terms of imprisonment: see Ilic v R (2020) 103 NSWLR 430; [2020] NSWCCA 300 at [41]; Hildebrand v R (2021) 387 ALR 271; [2021] NSWCCA 9 at [6]. For the Commonwealth offences, the applicant was sentenced to an aggregate fixed term (or, as was described by the sentencing judge, a "straight sentence") of 1 year and 3 months imprisonment, commencing on 27 February 2023 and expiring on 26 May 2024. For the State offences, the applicant was sentenced to an aggregate term of 2 years and 3 months imprisonment with a non-parole period of 12 months. This sentence commenced on 27 February 2024, with the applicant being eligible for parole on 26 February 2025. The expiry of the term is 26 May 2026.
As earlier noted, the consequence of the two aggregate terms of imprisonment is that the applicant has been sentenced to an effective term of 3 years and 3 months imprisonment with an effective non-parole period of 2 years.
I turn now to consider the applicant's grounds of appeal.
Ground 1(a): error in the consideration of the objective seriousness of the offending
By this ground of appeal, the applicant submitted that the sentencing judge failed to consider, and make findings about, the objective seriousness of the offending for count 3 (applicant's submissions at [18]).
The applicant emphasised that, in relation to all other counts, the sentencing judge provided concise, but explicit, findings about the objective seriousness of the offending, but no such finding was made in connection with count 3. The applicant's ultimate submission was that, aside from summarising the agreed facts concerning count 3 and correctly identifying the maximum penalty, there was no assessment of the objective seriousness of this offence at all, and no "factors relevant to the objective seriousness are mentioned. The remarks are silent as to how serious his Honour treated count 3 and the reasons for same" (applicant's submissions at [26], [28] and [31]). In the result, the applicant submitted that the sentencing judge erred in failing to address an essential element of the sentencing process in relation to this count (applicant's submissions at [33]).
It is well settled that an assessment of the objective seriousness of the offending is a critical requirement of the sentencing process: R v Campbell [2014] NSWCCA 102 at [27]; R v Van Ryn [2016] NSWCCA 1 at [133]-[136] ('Van Ryn'). The importance of that assessment is to ensure that an adequate sentence is imposed in accordance with s 3A(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act') (and, given the Commonwealth offences, s 16A(1) of the Crimes Act 1914 (Cth)) and that the sentence is proportionate to the gravity of the crime: Van Ryn at [134]-[135]; FL v R [2020] NSWCCA 114 at [58] ('FL'). The assessment also enables use to be made of the legislative guideposts, being the maximum penalty and any prescribed standard non-parole period: R v West [2014] NSWCCA 250 at [27]; Van Ryn at [135].
It is, in my view, clear that the sentencing judge failed to make any finding about the objective seriousness of the offending for count 3 and this error is readily apparent when one examines the sentencing judge's reasons: the omission is evident because, in relation to all other offending, there is an express finding dealing with the objective seriousness of the offending, but no such finding in connection with count 3.
Notwithstanding this omission, the Crown submitted this shortcoming was not, in the circumstances, erroneous. It raised two submissions by way of response.
The Crown's first argument, in effect, was that this omission needed to be understood in the forensic context of the sentencing hearing: the Crown submitted that there was no dispute between the parties as to the objective seriousness of count 3 and that, whilst that (apparent) agreement did not obviate the need for the sentencing judge to make an assessment of the objective seriousness of the offending, the way the matter was dealt with by the sentencing judge reflects this reality (Crown submissions at [16]-[25]). The Crown, in aid of this submission, emphasised what the sentencing judge had noted at J12, set out in [19], above - in effect, the sentencing judge noting that the applicant's counsel did not "cavil" with the Crown's submissions that characterised the offending across all counts. The upshot of this submission was that, given what was submitted to be essentially an agreed position during the course of the sentencing proceedings, the applicant cannot now complain that there was no finding made by the sentencing judge: the effect of that agreement meant that there was such a finding.
Ground 1(b): failure to provide adequate reasons for the indicative sentence
The applicant further submits that the sentencing judge failed to provide adequate reasons for the indicative sentence of 12 months (applicant's submissions at [19]).
The Crown submitted that it was not correct to say, as the applicant argued, that there was a "marked absence of reasons with respect to count 3" (Crown submissions at [32]). The Crown's ultimate submission was that "in light of the areas of dispute between the parties" and given the fact that the applicant did not make any submissions that directly challenged the Crown's submission that count 3 "was an example of an offence of mid-range of objective seriousness", it followed that there was no inadequacy in the reasons of the sentencing judge for count 3 (Crown submissions at [39]). In aid of that submission, the Crown raised in substance two matters that were argued to negate any conclusion that the sentencing judge failed to provide legally adequate reasons, both in relation to that count and in consequence the indicative sentence.
Before dealing with those arguments, the following should be noted. The applicant's challenge was directed to the absence of reasons in connection with the indicative sentence. An appeal does not lie against an individual indicative sentence (or indicative sentences), but is against the aggregate sentence: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40] ('JM'). Nevertheless, particularly given the "function performed by the indicative sentences is to set out the reasoning behind the aggregate sentence", the relevance of an indicative sentence is that it may be suggestive of error in the assessment of the aggregate sentence: Kresovic v R [2018] NSWCCA 37 at [42]; JM at [40]. The arguments of the parties proceeded upon this basis.
The Crown's first argument was that the absence of reasons was explicable because all of the facts relevant to objective seriousness were not the subject of dispute between the parties (Crown submissions at [35]). I have earlier dealt with the substance of that submission in connection with ground 1(a): see [40]-[44], above. I am, for the reasons there given, unable to accept that submission in connection with this ground. Although there were agreed facts relating to each of the offences, there nevertheless remained an obligation upon the sentencing judge to make findings about those facts and how they informed the further finding about the objective seriousness of the offending in connection with count 3: Van Ryn at [133]; Cage at [17]. Here, the sentencing judge failed to address, and make findings about, these matters: all that occurred was that the sentencing judge set out the agreed facts and referred to the maximum penalty. Thus, a critical step in the sentencing process, that informed and explained the sentence imposed, was missing. In the present case, the importance of assessing the matter in the way discussed is underscored by the fact that, in relation to count 3, the indicative sentence of the sentencing judge was the highest for the Commonwealth offences and the equal highest for all of the offences for which the applicant was sentenced.
Pre-sentence custody
The written submissions of each party before the sentencing judge identified that the applicant had served two days' worth of pre-sentence custody. The Crown's submission before the sentencing judge was: "On 11 February 2021, the [applicant] was arrested and was released on bail 2 days later". The applicant's submission before the sentencing judge was that the applicant had "spent two (2) days total in custody bail refused in this matter; 11-12 February 2021".
The sentencing judge made no reference to the applicant's pre-sentence custody, confirmed by the fact that the aggregate term for the Commonwealth offences commenced on the date of sentence (27 February 2023).
As it happens, as the Crown noted in its written submissions in this Court, the pre-sentence custody involved three, not two, days: the applicant was in custody on and including 11-13 February 2021.
Given this error is properly understood to be arithmetical only, it does not engage any obligation on this Court to re-exercise the sentencing discretion, as opposed to adjusting the commencement of the sentence to take into account this error: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] ('Lehn'); Almaouie v R [2021] NSWCCA 274 at [25]; Christian v R [2021] NSWCCA 300 at [35].
Erroneous discount for the guilty pleas to the State offences
There are, as I have noted, two parts to this error. I will briefly address some of the facts before addressing the errors.
The applicant, as earlier noted, entered his pleas at a super call-over after he was committed for trial but "well before the fixed trial date" (J13).
The Crown's written submissions before the sentencing judge accepted the pleas had objective utilitarian value for the Commonwealth offences (s 16A(2)(g) of the Crimes Act 1914 (Cth)) and in relation to the State offences, given the guilty pleas were entered after committal, the written submissions noted that the applicant was entitled to a discount of 10% from any head sentence (s 25D(2) of the CSP Act). On the discount for the guilty pleas, the applicant's written submissions before the sentencing judge were that "a fair, reasonable and appropriate discount for his plea of guilty in the circumstances is that of 20%". The applicant's written submissions did not refer to s 25D(2) of the CSP Act.
There was, putting to one side the operation of s 25D(2) of the CSP Act, a divide between the respective positions of the parties on the extent of the discount to be applied for the guilty pleas that required resolution by the sentencing judge. Notwithstanding, the sentencing judge noted that the parties were essentially in agreement about a "15% utilitarian discount" (J13):
…his plea of guilty is some manifest of his remorse and his attitude now to at least at this stage, assist in the administration of justice. His plea was entered in the context of the Commonwealth super callover. His plea was entered after he was committed for trial but well before the fixed trial date and the Crown accepts that the plea of guilty has significant utilitarian value and the parties shared in a submission that [a] 15% utilitarian discount was warranted. I have applied that to each of the indicative sentences that I propose to announce in due course.
Consistent with this, later, the sentencing judge noted that he had "applied the 15% discount to each of the indicative sentences" (J15).
The Crown submits that the sentencing judge made two errors.
The first error was that the sentencing proceeded on the basis that "the parties shared in a submission that [a] 15% utilitarian discount was warranted", when that was simply not so. In this Court, the applicant accepted that the sentencing judge had made this error (T3.16-3.25). That concession was properly made, given what has been set out, above. There was, contrary to what the sentencing judge in effect held, no agreement between the parties as to the appropriate discount to be applied for the guilty pleas nor was it the case that the parties "shared in a submission that [a] 15% utilitarian discount was warranted".
I am unable to accept this argument, for the following reasons.
First, even if it be the case that there was consensus between the parties about the appropriate finding to be made in connection with the objective seriousness of the offending in relation to count 3 (a matter that the applicant squarely contests, and is addressed below), a finding about that matter was nevertheless required and should have been made. An agreed position may lessen the extent to which reasons would be required to explain a finding, but it does not negate the requirement to make the relevant finding.
Secondly, whilst it may be open to accept in a given case that a finding has, by implication, been made given the approach of the parties, that is not this case. The position recorded by the sentencing judge was that the applicant did not "cavil" with the submissions as to the objective seriousness of all the offending made in the written submissions of the Commonwealth (J12). In my view, that holding did not correctly characterise the position of the applicant in connection with this issue. Whilst it may be accepted that neither the applicant's written submissions before the sentencing judge, nor the oral ones, specifically identified the findings of objective seriousness that were sought, that is propositionally different from, in effect, holding that the applicant in substance accepted the Crown's characterisations of the offending. In my view, it was erroneous to proceed, as the sentencing judge did, on the basis that the objective seriousness of each of the counts was in substance a common or agreed position. Given that conclusion, no question about an "implied" finding, based upon an agreed position, arises.
Thirdly, and overlapping to a degree with the second matter, the submission of the Crown was premised on the sentencing judge accepting the findings on the objective seriousness of the offending that were sought by the Crown in its written submissions before the sentencing judge. However, it is apparent that the sentencing judge did not uniformly act on the Crown's submissions - a matter that tends to undercut the suggestion that there was an "agreed position" and that "agreed position" was acted upon by the sentencing judge. For example, in relation to count 2, the written submissions of the Commonwealth did not address the specific finding sought as to the objective seriousness of the offending underlying that offence. Notwithstanding, the sentencing judge made a finding in these terms: "I take the view that [the] matter falls about the midpoint of the mid-range of objective seriousness". Another example is that, in relation to the State offences (counts 4-9), the submission made by the Commonwealth was that "the offences are in the low end of the mid-range of objective seriousness", whereas the finding made by the sentencing judge was in these terms: that the offending "fall[s] towards the lower end of the spectrum for this class of offence given the amounts of money and the criminality that can be disclosed in them…".
The Crown's second argument was that, even though it may be accepted that the sentencing judge did not make an express finding about the objective seriousness of the offending conduct the subject of count 3, in substance the sentencing judge dealt with all the matters that were relevant to that assessment. The essence of the submission put by the Crown was that the sentencing judge "engaged" with the objective features of count 3. The result, the Crown submitted, was that it could be "inferred that a proper assessment of the objective seriousness of this offence was conducted" (Crown submissions at [38]). Put slightly differently, but to the same end, the Crown argued that contrary to what the applicant had submitted, the sentencing judge covered, and made findings about, all of the relevant criminality (Crown submissions at [26]-[30]).
I do not accept this submission.
Whilst it is undoubtedly "preferable" for there to be an express finding dealing with the objective gravity of the offending, an absence of such a finding is not necessarily erroneous, if it is apparent that the sentencing judge did so implicitly by referring to, and making findings about, the facts that bear upon the objective seriousness of the offending: Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56].
Here, however, aside from setting out the agreed facts, and noting the maximum penalty available, the reasons of the sentencing judge did not make any intermediate findings that would be relevant to any finding about, or assessment of, the objective seriousness of the offending. It is well settled that a "bare recitation of the facts constituting the offences and a reference to the 'objective features of the offences' does not satisfy the requirements of sentencing": R v Cage [2006] NSWCCA 304 at [17] ('Cage'). It necessarily follows that a bare recitation of the facts constituting the offending for count 3 and no reference to the "objective features of the offence", which I consider to be the case here, would equally not satisfy the requirements of sentencing.
The Crown submitted that the mere failure of the sentencing judge to nominate where, on a hypothetical scale of objective seriousness count 3 fell, was not erroneous because what is important is to fully identify the "facts, matters and circumstances" which bear on the assessment of the gravity of the crimes (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29] ('Muldrock')), rather than expressing "the conclusion reached by reference to a position within a range": FL at [60]. That submission may be accepted. However, that is not the nub of the applicant's complaint, nor the substance of the errors that I consider are here present.
For these reasons, the applicant has demonstrated error in the way argued and ground 1(a) of the notice of appeal should be upheld.
The Crown's second argument was that any omission to deal with the objective seriousness of the offending in relation to count 3 was, in fact, a deliberate omission by the sentencing judge: given there was said to be "no dispute" about the objective seriousness of the offending, the omission was because the sentencing judge undertook to "expose his process of reasoning" for the other offending which, so it was argued, was the subject of dispute between the parties (Crown submissions at [36]).
I do not accept this submission. It is not, in my view, correct to say that there was "no dispute" about the objective gravity of the offending, as I have previously explained. Given no reasons were provided, it is a clear case of a failure to provide legally sufficient reasons in connection with count 3 and the indicative sentence. No issue therefore arises as to whether any reasons given meet the minimum acceptable level so as to constitute a proper exercise of the sentencing discretion.
For these reasons, the applicant has demonstrated error in the way argued and ground 1(b) of the notice of appeal should be upheld.
The second error was that, in relation to the State offences, the discount was contrary to the mandatory requirements set out in Part 3, Division 1A of the CSP Act - in particular, s 25D(2)(b) of the CSP Act, a section that only permits the applicant to receive a 10% discount for the utilitarian value of his pleas of guilty to the State offences. The applicant appeared to accept that this error had been made (T1.22-1.25; 2.48-3.25), but no clear concession about it was forthcoming. Nevertheless, the applicant made no submissions about the operation of s 25D given the timing of the applicant's pleas.
In my view, the Crown's submission is clearly correct. It is as well to explain, briefly, why I consider that to be so.
The provisions in Part 3, Division 1A of the CSP Act - which includes s 25D - were described as "constitut[ing] a mandatory and exclusive code for the application of sentencing discounts for the utilitarian value of pleas of guilty to charges of indictable offences": Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 at [2]; see also Stubbings v R [2023] NSWCCA 69 at [15]; Giles-Adams v The King (2023) 377 FLR 426; [2023] NSWCCA 122 at [72].
Division 1A deals with sentencing discounts for guilty pleas to offences dealt with on indictment: s 25A(1) of the CSP Act. That is the case here: the State offences were dealt with on indictment. Section 25A(2) then provides:
A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division.
When an offender pleads guilty to an offence at any time before being sentenced, the court "is to apply a sentencing discount for the utilitarian value of a guilty plea" in accordance with s 25D: s 25D(1). In the present case, given that the pleas of guilty were made after the applicant was committed for trial but more than 14 days before the first day of the trial (see the finding at J13, referred to in [61], above), then the discount for the guilty pleas is "a reduction of 10% in any sentence that would otherwise have been imposed": s 25D(2)(b)(i) of the CSP Act. In this respect, the discount has been described as "mechanical" given that "[n]o element of discretion is involved": Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81 at [6]. To quantify the discount other than in accordance with this section was therefore erroneous.
It follows that, in connection with the State offences, the sentencing discretion has also miscarried by the sentencing judge failing to adhere to the mandatory terms of ss 25D(1) and (2) of the CSP Act.
It is necessary to say something about the consequences of this error in the present case. The error raised was not raised by the Crown in a notice of appeal, merely in the written submissions that it had filed in response to the applicant's appeal. The Crown submitted that notwithstanding that the error had been raised in that way, and despite the fact that the error operated in favour of the applicant, the error having been identified it is incumbent upon this Court to intervene and resentence the applicant: it was argued that this was a "species" of error which affected the sentencing discretion with the consequence that it was the duty of this Court to exercise the sentencing discretion afresh. In this respect, the Crown particularly relied upon what was said by Simpson JA (Hoeben CJ at CL agreeing) in Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188 at [92]-[93] ('Flaherty'):
[92] It would, in my opinion, be a distortion of justice if this court were to find error of principle, to find that the appellant had not been sentenced according to law, but nevertheless refrain from intervention because the error has been exposed, not by the appellant, but the Crown.
[93] There is no reason why the statements in Kentwell do not apply to sentencing affected by error of principle, by whomever the error is exposed. In those circumstances, in my opinion, this court must proceed to set aside the sentence imposed and re-sentence the appellant. That means granting leave to appeal and allowing the appellant's appeal.
The circumstances in Flaherty giving rise to the above remarks should be noted. Both the offender and the Crown appealed. The offender's appeal was dismissed. The Crown's appeal included a ground that the sentence was manifestly inadequate. The offender conceded, however, that the sentencing exercise was flawed because the sentencing judge in that case acted upon a wrong principle (in effect, embarked upon a "two-stage" approach to sentencing: at [76]-[77]). Although the Crown was successful in demonstrating error, the Crown's appeal was dismissed: at [86]. Notwithstanding that the Crown appeal failed, and although the applicant conceded error, the error was not adopted on behalf of the offender as an independent ground of his proposed appeal. Nevertheless, the Court considered that a "question arises therefore, whether the identification of error by the Crown can be turned to the advantage" of the offender: at [91]. The Court then stated the principles that I have set out in [73], above.
Price J dissented in connection with this issue. The essential basis for his Honour doing so was expressed at [124] and [127], as follows:
[124] The focus of my concern is that following the dismissal of the Crown appeal, her Honour re-sentenced the appellant thereby reducing the sentence imposed by the sentencing judge, notwithstanding that the appellant failed in making out any of his grounds of appeal. In my respectful opinion, it defies logic and common sense to use the grounds of appeal successfully argued by the Crown as pointing to the inadequacy of the sentence as a springboard to ultimately reduce the same sentence. It is hardly surprising that the appellant did not adopt any of the Crown's grounds of appeal.
…
[127] It would be unfortunate, it seems to me, that what was said by the High Court in Kentwell… should be construed so as to require this court to re-sentence an appellant where any specific error affecting the sentencing discretion is identified, even though that error benefited the appellant. The task of sentencing should primarily remain with sentencing judges.
In this Court, the Crown submitted that the circumstances in Flaherty were "somewhat similar" to the present, with the consequence that error having been demonstrated (and accepted), the Court should proceed to resentence the applicant for the State offences. The applicant, as I have earlier noted, accepted the correctness of this approach, quite possibly because the applicant considered it forensically advantageous for this Court to exercise the sentencing discretion afresh in connection with the State offences. Given that concession, it is unnecessary to address whether, and if so to what extent, the approach taken in this case (an error, that is favourable to an offender, is identified but that error is not the subject of a ground of appeal by either party) is within the principles identified in Flaherty or is a permissible extension of it. It is also unnecessary to reach a conclusion about those matters because, as will be shortly explained, I consider that, in relation to the State offences, no lesser sentence in law is warranted.